Jewell v McGowan and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mance |
| Judgment Date | 28 February 2002 |
| Neutral Citation | [2002] EWCA Civ 145 |
| Docket Number | Case No: B2/2001/0732 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 2002 |
[2002] EWCA Civ 145
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GLOUCESTER COUNTY COURT
(Mr Recorder de Navarro QC)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Mance and
Mr. Justice Park
Case No: B2/2001/0732
William Batstone (instructed by Messrs Burges Salmon) for the Respondent
Mark Wonnacott (instructed by Messrs White and Bowker) for the Appellants
This is an appeal with his permission from the judgment dated 15th March 2001 and the order dated 16 th March 2001 of Mr Recorder de Navarro QC, whereby he declared that proposed activities set out in paragraph 18 of the Particulars of Claim would not be in breach of a farm Tenancy Agreement dated 20 th January 1982 made between, as tenant, the respondent and, as landlords, the appellants, who are trustees of the will of Mr M. J. Merrett as well as being the respondent's brother and cousins.
Mr M. J. Merrett was the respondent's grandfather. The respondent is also a trustee of the will. The background to this dispute lies in disagreement between him and the appellant trustees, as to whether the farm should be sold with a view to development.
The Agreement provides by clause 1 as follows:
"The Landlord shall let and the Tenant shall take ALL THOSE Farm lands with the buildings and premises known as LAND AND BUILDINGS AT ST AUGUSTINES FARM ARLINGHAM GLOUCESTER …. for the purpose of identification edged in red on the plan attached hereto and more particularly described in the First Schedule hereto containing 110.53 acres …."
In 1988 a small corner of the red land, with buildings on it, was sold for development. This was by agreement, although the respondent was evidently disappointed that neither as trustees nor in their individual capacity were his brother and cousins willing to put money back into the continuing farm.
In the same area as the corner sold off and adjoining the remaining red land is some land (the yellow land) which belonged to the respondent personally until 1996 when he sold it off also for development and two further plots of land (the green land) which continue to belong to him personally.
The period of the lease was expressed in clause 1 as being from 29 th September 1981 to 29 th September 1982
"and thence for one year and so on from year to year until at least 12 calendar months notice to quit be given in writing by either party to the other expiring on the 29 th day of September in any year …"
Under clauses 1 and 11 the rent reserved was £1500 "and any rent substituted therefor by agreement or arbitration under the provisions of the Agricultural Holdings Act 1948 ….". There are numerous further references in the Agreement to the Agricultural Holdings Act 1948. Clause 50 provides:
"Any reference in this Agreement to a Section of the Agricultural Holdings Act 1948 shall be deemed to include a reference to any amendments to such Section that has now been or hereafter may be made and to any Section or Sections substituted therefor by any subsequent enactment relating to Agricultural Holdings"
It thus becomes relevant to consider the Agricultural Holdings Act 1986.
The Agreement contains a number of detailed provisions regulating specific aspects of the intended agricultural use of the premises. Among the covenants by the respondent as tenant appears the following:
"The Tenant agrees with the Landlord: …..
22. That he will use the holding for agricultural purposes only and no part thereof as a market garden as to which nothing in this Agreement shall be taken to give such consent"
Use as a market garden would, we were told, entitle a tenant on termination of the lease to special compensation. Hence, probably, the exclusion of such use in clause 22. Clause 38 provides the trustees with a right of re-entry in the event of any breach of the agreements in the Agreement.
The proposed activities set out in paragraph 18 of the Particulars of Claim, and to which this litigation relates, are as follows:
"18.1 The creation of a new farm access along the route shown coloured brown on the First Plan.
18.2 The parking of visitors' vehicles on that part of the Red Land shown hatched red on the First Plan.
18.3 The walking by visitors of a route-marked trail on the Red Land.
18.4 Access to the Red Land for visitors to roam and look at the crops and animals about the farm.
18.5 To take the public around the farm on a trailer pulled by a tractor."
The respondent used to carry on activities of this general kind on the land from 1988. These were acquiesced in by the trustees until at least 1994, but the respondent ceased them after October 1997 following a threat then by the trustees to serve notice to quit. The present proceedings aim at establishing a right to resume them. The issue of waiver (i.e. conduct precluding the trustees from asserting that the proposed activities would in future constitute a breach) is no longer a live one. The only issue before us is whether the proposed activities would be in breach of the terms of clause 22.
The judge summarised the history as follows:
"In about 1988, having had to reduce his dairy herd as a result of European agricultural policy, the claimant began to use his farm for what I shall call "open farm activities". Whilst continuing to farm the land as an organic dairy farm, he invited visits from school children and others to the farm. His purpose was twofold, firstly to educate the children and the public generally with regard to agriculture and dairy farming and to promote the farm and its produce and secondly to increase his income from the farm so as to be able to put more money into farm improvements.
The venture flourished. A shop, tearoom and toilet facilities were provided on the yellow land, which was the claimant's own land, and the blue land, which was not. In addition the claimant allowed the visitors to park vehicles on part of the red land (the upper part of the field numbered 6720 on the plan) and to walk round the red land by means of a farm trail and generally to roam on it to observe the farm and look at the crops and animals and feed the animals. After a few years the open farm activities were so successful that the farm received up to 10,000 visitors a year, about half of whom were children from schools in Gloucestershire and Avon, the remainder members of the public, who largely consisted of families living in Gloucestershire. The venture had the support of the NFU and other bodies and was featured on several television programmes. At its height, the claimant estimated it provided approximately one-third of the farm's income, the remaining two thirds coming from the dairy farming operation."
The evident attractiveness of the open farm activities to the public—a tribute to the skill and application of the respondent and his wife—makes it a matter for regret that the present dispute could not be resolved without proceedings. We were told that mediation was considered, but for whatever reason not pursued. As it is, we have to view the rights or wrongs of the proposed open farm activities by reference to the terms of the lease, sensibly construed in the light of any relevant surrounding circumstances.
Turning to what was proposed for the future, the judge said:
"It is important to appreciate that the bulk of the facilities provided in connection with the open farm activities, such as the shop, tea-room, schoolroom, museum, and toilets, are intended in the future to be sited on the green land, that is on the claimant's own land. So (on the evidence before me) is the milking parlour and dairy, which visitors will visit. That use of the green land cannot amount to a breach of the terms of the tenancy of the red land. Moreover it is, as I understand it, of the essence of the operation that the red land (and indeed the green land) should continue to be used as a working farm. It is the very nature of an "open farm" as opposed to a farm park or museum that it should be a working farm. The claimant's intentions are summarised in the document (p145). For present purposes it is sufficient if I quote from the second and third paragraphs of that document.
"Visitors come to see a real working farm rather than a farm park. Being able to go into the parlour to watch the milking is one of the highlights of the day, as is the opportunity to get close to animals, to talk to farm staff, to spend time in the countryside.
The farm land belonging to [the defendant landlords] will continue to be used for agricultural purposes including the dairy herd, followers, other animals, farm machinery, farm storage and related activities. The tenant reserves the right to decide from time to time to use it for other agricultural uses (such as arable)."
Although the matter was not explored in detail in evidence my clear impression was that the shop and tea-room, although no doubt designed to be profitable, were there as an adjunct to visits to the working farm and that the principal purpose of the visits would be as set out in Paragraphs 52–56 of the claimant's Witness Statement (pp. 48–9), namely to observe a working farm in action.
What is proposed in relation to the red land is the use of a new access road over the red land, marked brown on the plan (p8), for visitors to the open farm. The defendants do not object to the creation of the access road but they do object to its use by visitors. Further, it is proposed to use a part of field 6720 on the red land (the area hatched on the plan) as a car park for visitors, to...
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